Perazza (Migration) - [2021] AATA 4186

Perazza (Migration) [2021] AATA 4186 (19 August 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Elvira Perazza
CASE NUMBER:  1824421
HOME AFFAIRS REFERENCE(S):          CLF2017/9777
MEMBER:M. Edgoose
DATE:19 August 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the application for an Other Family (Residence) (Class BU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 838 (Aged Dependent Relative) visa:
·cl 838.212 of Schedule 2 to the Regulations
·cl 838.221 of Schedule 2 to the Regulations.

Statement made on 19 August 2021 at 1:03pm
CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 838 (Aged Dependent Relative) – ‘aged dependent relative’ – granddaughter’s husband – incapable of meeting basic needs without ongoing support – financial reliance – Power of Attorney (POA) – medical letter – age pension age – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.05A; Schedule 2, cls 838.212, 838.221
CASES
Huang v MIMIA [2007] FMCA 720
Huynh v MIMIA (2006) 152 FCR 576
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 13 August 2018 to refuse to grant the applicant an Other Family (Residence) (Class BU) visa under s 65 of the Migration Act 1958 (Cth).
The applicant applied for the visa on 17 January 2017. At that time, Class BU contained three subclasses, Subclass 835 (Remaining Relative); Subclass 836 (Carer) and Subclass 838 (Aged Dependent Relative). In the present case, the applicant is seeking to satisfy the criteria for the grant of a Subclass 838 visa which requires the primary applicant to be the aged dependent relative of an Australian citizen, permanent resident or an eligible New Zealand citizen. The criteria for a Subclass 838 visa are set out in Part 838 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Relevantly to this matter, the primary criteria to be met include cl 838.212.
The delegate refused to grant the visa on the basis that cl 838.212 was not met.
The applicant was represented in relation to the review by her registered migration agent.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The visa application was made on the basis that the applicant is the aged dependent relative of Mr Giuseppi Caligiuri, who the applicant claims is their relative. Relative is also defined in reg 1.03 and means a ‘close relative’ as defined, or a grandparent, grandchild, aunt, uncle or niece or nephew (or their step equivalents).
In this case Mr Giuseppi Caligiuri is an Australian citizen and is the applicant’s granddaughter’s husband.
Is the applicant an aged dependent relative of an Australian relative?
To be granted a Subclass 838 visa the applicant must be an ‘aged dependent relative’ of an Australian citizen, permanent resident or eligible New…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Perazza (Migration)

Details

AGLC: Perazza (Migration) [2021] AATA 4186
Case: [2021] AATA 4186
Decision Date: 19 August 2021

CaseChat Overview and Summary

This matter concerned an application for an Other Family (Residence) (Class BU) visa, specifically a Subclass 838 (Aged Dependent Relative) visa. The applicant sought to establish that they were an "aged dependent relative" of an Australian citizen, Mr. Giuseppi Caligiuri, who is the applicant's granddaughter's husband. The Administrative Appeals Tribunal was required to determine whether the applicant met the criteria for this visa subclass.

The Tribunal was tasked with assessing whether the applicant qualified as an "aged dependent relative" as defined in regulation 1.03 of the Migration Regulations 1994. This involved determining if the applicant was a "relative" of an Australian citizen, if they had no spouse or de facto partner, if they had been and remained dependent on the Australian relative for a reasonable period, and if they were of an age to be granted an age pension. The definition of "dependent" under regulation 1.05A(1) was also a key issue, requiring consideration of whether the applicant was wholly or substantially reliant on the Australian relative for financial support to meet basic needs, and whether this reliance was greater than on any other person or source.

The Tribunal found that the applicant was a "relative" for the purposes of the visa application, as Mr. Caligiuri was the applicant's granddaughter's husband. It was also established that the applicant was widowed, thus meeting the criterion of not having a spouse or de facto partner. However, the Tribunal concluded that the evidence presented did not sufficiently demonstrate that the applicant was dependent on Mr. Caligiuri for a reasonable period to meet their basic needs, nor that this reliance was greater than any other support. The Tribunal noted that the applicant had arrived in Australia in December 2016, applied for the visa in January 2017, and the application was refused in August 2018.

Consequently, the Tribunal remitted the application for reconsideration by the Minister. The Tribunal directed that the applicant met the criteria under clauses 838.212 and 838.221 of Schedule 2 to the Regulations, but further assessment was required regarding the remaining criteria for the Subclass 838 visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration. CONSIDERATION OF CLAIMS AND EVIDENCE The visa application was made on the basis that the applicant is the aged dependent relative of Mr Giuseppi Caligiuri, who the applicant claims is their relative. Relative is also defined in reg 1.03 and means a ‘close relative’ as defined, or a grandparent, grandchild, aunt, uncle or niece or nephew (or their step equivalents). In this case Mr Giuseppi Caligiuri is an Australian citizen and is the applicant’s granddaughter’s husband. Is the applicant an aged dependent relative of an Australian relative? To be granted a Subclass 838 visa the applicant must be an ‘aged dependent relative’ of an Australian citizen, permanent resident or eligible New Zealand citizen (the Australian relative) at the time of application, and continue to be one at the time of decision: cl 838.212, cl 838.221 and cl 838.111. ‘Aged dependent relative’ is defined in reg 1.03 of the Regulations. Broadly speaking, a person will be an ‘aged dependent relative’ of another if: they are a ‘relative’ within the meaning of reg 1.03; they do not have a spouse or de facto partner; they have been dependent on the Australian relative for a reasonable period and remain so dependent; and are old enough to be granted an aged pension under the Social Security Act 1991 (Cth). In this case, the applicant is the ‘relative’ of an Australian relative for the purposes of cl 838.212. Does the applicant have a spouse or de facto partner? The applicant is widowed and therefore meets the definition of ‘aged dependent relative’. For these reasons subparagraph (a) of the definition of ‘aged dependent relative’ is met at the time of application and the time of decision.Is the applicant dependent on the Australian relative? The definition of ‘dependent’ as it applies to this application is set out in reg 1.05A(1) of the Regulations. Generally speaking, an applicant will be dependent on their relative, if at the relevant time the applicant was wholly or substantially reliant on their relative for financial support to meet their basic needs for food, clothing and shelter; and their reliance on their relative was greater than their reliance on any other person or source of support. An applicant may also meet the requirements where their reliance on their relative is due to the total or partial loss of their bodily or mental functions: reg 1.05A(1). For the purposes of this application, reference to a ‘substantial period’ in reg 1.05A means a period not more substantial than a ‘reasonable period’: Huang v MIMIA [2007] FMCA 720 at [47]. Further, the proper construction of ‘dependent’ in reg 1.05A does not carry any implication of the notion of necessity or lack of choice reg 1.05A: Huynh v MIMIA (2006) 152 FCR 576 at [43]. The applicant arrived in Australia on 6 December 2016 on a Subclass TV-651 visa. This visa ceased on 6 March 2017. While onshore the applicant submitted an application for an 838 Aged Dependent Relative visa on 17 January 2017. This application was refused on 13 August 2018 and is the subject of this review.

Decision

Reasons for decision

Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 838 visa.DECISION The Tribunal remits the application for an Other Family (Residence) (Class BU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 838 (Aged Dependent Relative) visa:· cl 838.212 of Schedule 2 to the Regulations· cl 838.221 of Schedule 2 to the Regulations.M. EdgooseMember

Ratio Decidendi

Legal Principle Established

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